No: FD25P00282 - [2025] EWHC 2144 (Fam)

I can deal with this issue relatively briefly. It seems to me clear from the messages that I have seen, and in particular the set of messages exchanged between 26 and 28 September 2024 that the mother told the father that she would not be returning to New Zealand with B within the time frame that had been agreed between them when she left. Whilst I note the mother’s message sent during this period that she was not saying that she would not necessarily return but was considering her options, given the severity of the father’s reaction demonstrated in these messages, I am satisfied that the mother must have sought to abrogate to herself alone, the decision as to whether and when she and B would return. It is clear that it is possible for a parent, by their actions, to effect a repudiatory retention even before the agreed date for a return has arrived (Re C (Children) [2018] UKSC 8), and this is what I consider must have taken place here.

In such circumstances, I do not consider that it is open to the mother to argue that this is not a case where there was no wrongful retention at all, and that the decision to remain in England was, from the start, one jointly taken by both parents. In my judgment, the mother’s actions in indicating that she would not be returning with B within the time frame previously agreed is sufficient to amount to a wrongful retention in breach of the father’s rights of custody. I therefore do not consider that this is a case where the Convention has no role to play, and I consider that the subsequent discussions between the parents must be considered through the lens of the Article 13(a) acquiescence defence as set out below. I therefore find that there was a wrongful retention no later than 28 September 2024.